Why "Underfiling" by States Can and Should be Used to Enforce Environmental Regulations

Abstract

“Overfiling” occurs when the federal government files an environmental enforcement action in situations where the state environmental enforcement agency has not sufficiently prosecuted a violator of a federal environmental statute. A recent case from the Tenth Circuit appears to support the idea of overfiling under the Resource Conservation and Recovery Act, and other courts have upheld overfiling actions under the Clean Water Act and the Clean Air Act. This Note argues that the practice of “underfiling,” a process in which states file environmental enforcement actions even after the federal government has already overfiled, is also supported by these federal court decisions. This Note also suggests that states may intervene under Rule 24 of the Federal Rules of Civil Procedure in federal environmental enforcement actions in order to seek additional relief from violators of environmental statutes.